This Scottish Government consultation sought views in relation to a draft Supporting Children’s Learning Code of Practice (third edition) 2017 – the statutory guidance for the Education (Additional Support for Learning) (Scotland) Act 2014. My response to the consultation is below.

Introduction

10 – There is a discrepancy here in how an eligible school child is described. Here it states that an eligible school child is under school age (i.e. under 5), whereas at Chapter 2, para 14, it states that they will be under the age of 3. This is confusing and could be better described.

11 – It is important to note that the assessment of capacity and the assessment of impact on wellbeing are two separate tests. It is not helpful to conflate the two, as here. A child may have capacity to exercise a right even where it would adversely affect their wellbeing, and vice versa.

Chapter One

2 – Re: foetal alcohol spectrum disorder– the international standard spelling, which the Scottish Government, the BMA et al now use, is Fetal Alcohol Spectrum Disorder. The following resources could be referred to as being useful for practitioners: NHS Education Scotland’s free on-line course/resource on fetal alcohol harm: http://www.knowledge.scot.nhs.uk/home/learning-and-cpd/learning-spaces/fasd.aspx.

4 – There is no presumption in law that looked after children require a CSP, simply a requirement to determine if that is the case.

12 – The right to request that an authority determine whether “their child” has additional support needs doesn’t read well in relation to young persons or eligible children, and should be amended.

14 – I am concerned that the term “evidence based” in relation to assessment of capacity will lead to delay. It should be stressed that an authority will usually know the child well enough to make this sort of determination quickly. A time limit should be set out in the guidance so that children are not left in limbo being unable to exercise their rights.

Chapter Two

2 – The fact that children do not have to be in school to receive “school education” is a point well worth making here.

4 – Throughout the Code, the references to entitlements under Curriculum for Excellence is very welcome. The reference to learning being supported by “the parents in the home or their wider community” is not clear whether this is intended to mean:

Supported by parents a) at home and b) in their wider community; OR

Supported a) by their parents at home and b) by their wider community.

5 – In the final sentence, it is not when the authority have determined that they have additional support needs that a duty kicks in for looked after children, but rather, if they have not determined that the child does not have such needs.

6 – Given that there is a duty on corporate parents to collaborate with each other, is there a case for expanding the definition of appropriate agency to include any agency acting as corporate parent in relation to an individual child or young person? This can be done by Scottish Ministers by regulation.

9 – Strictly speaking, it is the provision required which is assessed against provision made in mainstream schools in that area, not the child’s needs. The result of that comparison will determine in law whether the child has additional support needs. (Also in 10)

14 – See comments on Intro, para 10

Chapter 3

1 – A child belongs to the area in which their parents reside, regardless of whether they also reside there. As a side note, this can prove difficult where a child’s parents live in different local authority areas. The law does not distinguish between e.g. resident and non-resident parents for these purposes.

7 – The need for a holistic assessment should her be tied back into the ASL Act, by reference to the authority’s duty to assess for additional support needs, and the parental right to make an assessment request.

8 – The terms “least intrusive and most effective” will often be contradictory. More effective interventions may also be more intrusive. A concern about intrusion should only be a concern in terms of interventions which may take place in a family’s home or where they have expressed reservations. In relation to school based interventions, this becomes an almost meaningless expression, which must not be allowed to be used as an excuse for not making provision of additional support for children or young persons. The 2004 Act does not have any such principle of non-intervention, indeed quite the reverse. There is a statutory duty to make provision effective, but none to make it non-intrusive. At the very least, the terms should be reversed “most effective and least intrusive” is slightly better.

9 – Reference is made to a child’s plan, without setting out the criteria for same. This may be helpful.

32 – The flowchart at Stage 2 and Stage 3 uses the terminology “Situation not resolved and need for further action identified.” Section 4 of the Act which sets out the duty for providing support does not require this sort of trial and error approach. While this may be the way in which a need for support is revealed in some cases, in others it will be obvious at the outset that a child requires multi-agency support. In such cases, there is no need for the child to start out with a Stage 1, single agency plan (as the flowchart implies).

36 – The Code here states that looked after children are considered to have additional support needs unless they have been “identified as not having them.” This might be taken to mean that the process of placing a looked after child outwith the scope of the legislation can be done informally, which is not the case. The phrase “formally determined as not having them” may be better.

40 – Considering advice or information from the local authority’s own social work services may not require consent from parents or young persons under the 2004 Act. However, this would still amount to a processing of personal data in terms of the Data Protection Act 1998 and the local authority would still have to be able to justify that processing in terms of the grounds provided under that Act.

42 – The requires to assess capacity and wellbeing prior to the exercise of children’s rights are here described as “safeguards”. This is inaccurate. A better description would be “barriers”. Please use this term instead.

“.. neither the child nor the education authority may exercise that right.” The education authority would never have the right to do so under any circumstances. This is not a by-product of the assessments.

43 – Given that the assessment requests in Section 8 & 8A overlap, it may be simpler to say that such a request can be made at any time, rather than trying to differentiate the two different sections under which a request can be made.

44 – There is a big jump between the second and third sentence, which could be linked by explaining that in the case of an assessment request which is medical, the authority may seek assistance from the NHS.

51 – It would be helpful to outline how long an education authority should take to respond to an assessment request, and how long to complete the assessment(s) requested.

63 – As before, the Act does not require a trial and error approach if it is clear that the support required by an individual is required from a number of agencies.

65 – While is it accurate that an education authority “are not obliged” to make provision in these circumstances, in exercising their discretion, they must do so reasonably and lawfully.

67 Again, where exercising their discretion, an education authority must do so reasonably and lawfully.

69 – It is not helpful, in this document to highlight coercive measures – which are only mentioned in the Code in relation to home educating families. In chapter 5, para 24 for example, mention is made of parents who will not co-operate with a CSP process. No mention of coercive measures is made here.

70 – Where the education authority refuse to make provision for a child in these circumstances, the exercise of their discretion may be subject to mediation or dispute resolution.

75 – Again, where exercising their discretion, an education authority must do so reasonably and lawfully. The exercise of their discretion may be subject to mediation or dispute resolution.

91 – The Code thus far gives the impression that personal support (under CfE) includes additional support, whereas here, there is an attempt to distinguish the two. Universal support may be a better term here, rather than personal support.

94 – If the answer to that question is “No” then the authority requires to notify the parent/young person/child that their decision is that they do not have additional support needs, and should inform them of their rights to request mediation and/or dispute resolution.

Chapter 4

5 – Children over the age of 12 do not have the right to request mediation, either.

6 – Again, in exercising their discretion, the authority must do so reasonably and lawfully.

9 – It is incorrect to say that mediation cannot be used because the authority have no duty to carry out an assessment. Section 15 of the 2004 Act allows for mediation concerning the exercise by the authority of any of its functions under the Act.

10 – The reason that the parents of a child in an independent school cannot access the dispute resolution process in your example is not because the authority has not duty, but because the matter is not a specified matter under the Regs.

11 – Eligible children cannot make a placing request under the revisions to the Act. Nor can they make a placing request appeal under the Act.

33 – Where the pre-school provider is an independent special school, or nursery classes within an independent special school, then a reference to the Tribunals could indeed be made to the Tribunal, partnership agreement or no.

37 – Here, the reference to para 33, should include a reference to para 34 as well.

41 – Here, the reference to para 33, should include a reference to para 34 as well. The “education authority appeal committee” should read “ education appeal committee”.

48 – Where the pre-school provider is an independent special school, or nursery classes within an independent special school, then a reference to the Tribunals could indeed be made to the Tribunal, partnership agreement or no.

The content of this chapter is at great length and becomes confusing. Could some of this information be presented in tabular form?

Chapter 5

13 – Under learning environment, the phrase “because the appropriate measures have not been put in place” is used. Care is needed not to feed the fallacy that where a child’s needs are being met they do not have additional support needs, or that they would not require a CSP. This is not the case.

25 – Where the eligible child is to be informed of a proposal to establish whether they require a CSP, it would be in addition to their parent(s), not instead of. Strictly speaking, before an eligible child would have the right to be notified of the authority’s proposal, they would be expected to notify the authority of their intention to exercise this right. How they do this, without knowing that the authority are planning to notify them of their proposal is not clear. Perhaps the authority should notify the child of their intention to notify him or her that they propose to establish whether or not they require a CSP. Then the child could notify the authority in return that they intend to exercise their right to receive notification of that proposal. Then the authority would require to assess the child’s capacity to exercise that right, and whether it would adversely affect their wellbeing to do so, before finally agreeing that they should be notified. This all seems unnecessarily complex, but appears to be required by the amended Act.

30 – There may be a requirement to notify the eligible child of a decision regarding a CSP as well.

78 – Reference to “paragraph 78 above” appears instead to be a reference to para 77?

80 – Reference to paras 75 and 78, appear to be a reference to para 74 and 77 instead?

100 – The involvement of two or more agencies is not the criteria for a child’s plan in terms of Section 33(1) of the Children and Young People (Scotland) Act 2014 and it is misleading to include that here.

Chapter 6

7 – Section 13(6) of the 2004 Act makes the regulation applicable to “children and young persons having additional support needs” and the Regulations do not seek to restrict this category. There is no lawful basis for denying some children access to these transition procedures – the authority do not have a discretion on this. This is incorrect and needs to be altered.

20 – This para make reference exclusively to young people. For a school leaver planning to leave school at 16, the transition provisions would also include children.

23 – Footnote 70 makes reference to the old definition of “young person”, rather than the revised definition which will be in force at the same time as the Code is published, as I understand matters.

32 – The Scottish Transitions Forum is mentioned here – further detail from the Principles of Good Transitions 3 should be made: including setting out the seven principles in full in the body of the Code. At the very least they should be included in an Appendix.

37 – The duty in Section 12(6) applies to “any child or young person having additional support needs”. There is no lawful basis for denying some children access to these transition procedures – the authority do not have a discretion on this. This is incorrect and needs to be altered.

38 – The phrase “best interests of the child” is used here. In keeping with terminology used elsewhere, a reference to “wellbeing” may be more appropriate.

45 – The refusal to give permission to share personal data with other agencies can presumably only act as a bar to bringing a reference in relation to transition duties to share information. The other transition duties (to gather information about likely provision etc.) still apply and could be the subject of a reference to the Tribunal.

Chapter 7

7 – The views of the parents are sought even where the child also has capacity to express a view.

14 – How well the person taking the child’s view know him/her should not be regarded as a matter which gives the child’s views extra weight. The familiarity may bring with it a knowledge on the part of the child of the answer the adult regards as the right one and an unconscious pressure to give that answer. The best way for a child’s views to be taken is by an independent children’s advocacy worker who has had the opportunity to build trust with the child.

19 – The terminology used by the Act is “adversely affect the wellbeing of the child” – this is not the same as avoiding any adverse impact on wellbeing. The wording used in the Code here overstates matters. Particular consideration in the assessment of wellbeing in these matters should be given to the wellbeing indicator of Respected – the child’s right to respect for their decision to exercise their rights must be of paramount importance.

23 – Parents are also empowered to speak and act for their child, even where the child does have capacity – the child may prefer that their parents do the talking in a review meeting for example.

31 – This has been the subject of a Section 70 complaint, in which Scottish Ministers indicated that to exclude a supporter or advocate, the authority would require to show evidence of their unsuitability – it is not enough to have a subject view to that effect. The parent’s choice of supporter or advocate should be respected in all but the most extreme cases.

37 – Is it intended that details of the Children’s Service be given here? Also at 39?

Chapter 8

2 – I disagree. Authorities should not give precedence to their own internal complaints processes over the specialist dispute resolution mechanisms provided for in the Act. In two separate decisions in 2015, against Highland Council and Fife Council, the SPSO upheld complaints by parents who had been through the Council’s own complaints process. The Ombudsman found that they “had a right to be made aware of the alternative dispute resolution provision” (https://www.spso.org.uk/sites/spso/files/decision_summaries/201302996.pdf) and recommended that the Council ensure parents were appropriately advised of their rights to independent adjudication. The same issue arises in relation to the flowchart on p135, which also manages to imply that mediation must be attempted before accessing the Tribunal (which is specifically ruled out by s15 of the Act).

“Scotland’s Strategy for the Learning Provision for Children and Young People with Complex Additional Support Needs 2017-20206 aims to support improved outcomes for children and young people with complex additional support needs through strategic commissioning of national services; with particular focus on the provision of education. This strategy is based on recommendations made in the Doran Review published in November 2012. While this strategy also recognises the critical role played by social services and health in supporting educational outcomes, the strategy is set within the context of The Additional Support for Learning Act 2004.”

The consultation document sought responses to the proposed strategy for children and young people with complex additional support needs. Below is my response to the consultation.

Responses are sought to this consultation document. I have prepared some comments based on my knowledge and experience of providing legal representation for the families of children and young people with complex additional support needs.

On page 4, I would suggest using the full title of the Act, i.e. “the Education (Additional Support for Learning) (Scotland) Act 2004”.

On page 6, the relevant Act for the criteria for a CSP is the Education (Additional Support for Learning) (Scotland) Act 2004, not the 2009 Act.

On p7, the Doran Review specifies an aspiration that services are delivered, where possible, “within the home community” (this is mirrored on p10 – “locally provided”).

The benefits to the child of having services delivered within their community will be many. However, care must be taken that this terminology is not seen as a reason to avoid choosing an out of authority placement for a child who would benefit from that service. It would be useful to set out what is meant by “locally” and “home community” and to stress that it is not shorthand for the specified area of the education authority in question. I have witnessed the argument being made that a child would benefit from being educated in their local community, when the local authority provision in question is many miles from their home. For a child living in Spean Bridge, Inverness is no more their “home community” than Glasgow is.

The Doran Review also specifies an aspiration that services are inclusive (and again on p10). No-one would argue that inclusion is not of benefit to the child. However, care must be taken that the term inclusion or inclusive does not become shorthand for mainstream school. While the presumption of mainstreaming is legally defined in very mechanical terms, of much more importance is the quality of the experience for the child at the provision in question and how that is perceived. How included does the child feel? How inclusive is the school experience for the child and their family?

A child attending a residential special school away from home may experience that as a wholly inclusive setting, whereas a disabled child attending a mainstream school where she is not permitted to attend school trips and is not selected for the sports teams may find that placement to be the opposite of inclusive. The child’s views should be central to this question.

On page 8, the document states “The decision as to the most appropriate interventions and placement lies with the home education authority ..” But should it rest there? There are problems with the current set-up in which the authority determines the child’s placement, unless overruled by a placing request on appeal.

In my opinion, the ideal would be for a system which successfully places at the nationally funded special schools only those children who need it most / would derive most benefit from that placement.

There is a danger with the current arrangements that children are instead placed at such schools for other reasons, for example:
• because their parents are more persuasive, articulate or knowledgeable than those of other children;
• because their parents’ representatives are skilled in making appeals to the education appeal committee or Additional Support Needs Tribunals as the case may be;
• because with the central funding available, the school is cheaper than more appropriate placements in other authority areas / independent sector;
• because the child or family is at crisis point and suitable social work support is not available, the child being placed for respite reasons, rather than educational ones.

A better system, in my view, would be to nationally fund the GASS schools (not necessarily the same ones as at present) in full to provide specialist places for a defined number of children with particular types of complex / severe additional support needs (as determined by the National Strategic Commissioning Group).

The schools themselves, as centres of excellence in their respective fields, would then be able to select the pupils who would most benefit from the places. Without a shortage of places, there would be no disincentive to transition back to the authority’s own schools. With no financial penalty for doing so, authorities would be free to recommend places for children suited for placement based solely on the child’s additional support needs and wellbeing.

Such a system also removes the need for an expensive, time consuming and stressful dispute resolution process which can damage working relationships and take up valuable resources (time, money, energy) which could otherwise be directed by authorities and parents alike to supporting positive outcomes for the child in question.
The Scottish Government already provides 100% capital and revenue funding for one mainstream grant-aided school (Jordanhill School) and there is no reason why it could not do so with (selected) grant-aided special schools. It would be simple to achieve, would not require any legislative changes, and provides savings elsewhere in the system.

In the first instance this could be piloted in relation to a small number of schools or even a single school.

Also of interest in this context are the proposed changes to the structure of Scottish education under the Scottish Government’s governance review. If the education authority are to remain responsible for additional support needs (cf. http://www.gov.scot/Publications/2017/06/6880/11) while schools acquire new autonomy for the delivery of education and responsibility for closing the attainment gap – then the current system where the authority is basically tied to offering places in its own schools in all but the most extreme cases could be modified.

Does an education authority, responsible for meeting a child’s additional support needs need to be tied to schools in a given area, if all such schools are acting autonomously?

Perhaps an education authority should be given the broader choice of “purchasing” a suitable placement for a child with complex additional support needs, whether that happens to be at a public school, an independent school or a grant-aided school.

On page 10, the Legislative and Policy Context, bullet point 1 should read “Education (Additional Support for Learning) (Scotland) Act 2004”, and bullet point 5 should read “Children and Young People (Scotland) Act 2014”.

Page 11 mentions a “3 year cyclical commissioning plan” which would allow alignment with education authorities’ accessibility strategies and other planning duties.

Page 12 notes the need for “proactive collaborative working” – but the current system does lead to disputes – better collaboration between grant-aided schools and authorities would be of benefit to pupils, but can be difficult to achieve on the back of a process in which parties are led to criticise the other’s provision.

Page 13 talks about the development of relevant professional learning opportunities, but there is a strong case for professional learning requirements. The Requirements for Teachers (Scotland) Regulations 2005 currently require suitable qualifications for those working wholly or mainly with pupils with a visual impairment, a hearing impairment, or a dual sensory impairment. Why is there no equivalent requirement for, say, those working with pupils who have an autistic spectrum disorder?

On page 14, the need for a strong partnership between parents and providers is noted. It can be difficult to engage with parents for special schools as there are often much larger catchment area, parents with additional caring responsibilities etc. Could the Scottish Schools (Parental Involvement) Act 2006 be extended to include grant-aided special schools, or guidance issued on adopting the same system on a non-statutory basis (which could be made a condition of funding)?

I would also observe that there is a need to maintain strong and ongoing local authority engagement where placements are made at grant-aided special schools, particularly in relation to educational psychology services and at the post-school transition stages.

The definition of “working day” should be revised so as to include days in July. As things stand the biggest influx of cases to the Additional Support Needs Tribunals are placing requests, which are mostly determined, nationally, at the end of April. This leads to a large number of references being lodged with the Tribunals during May and June. By excluding July from calculations of time limits, case statement periods etc. this leads to real difficulties in ensuring that cases of this sort are determined in time for a decision to be taken prior to the start of the new school year, let alone to give any time for a meaningful transition.

While it is acknowledged that there may be difficulties arising from the availability of key personnel and witnesses during the school summer holiday periods, this will not always be the case, and should not automatically be hardwired into the rules. The Tribunal is able to adjust case statement periods and other deadlines, and to set down hearing dates taking into account the availability of staff / witnesses under other Rules, and the exclusion of July from the calculation of “working days” is not necessary and is prejudicial to the wellbeing of children with additional support needs undergoing transition to nursery, primary or secondary school.

Rule 4

There is no need to distinguish between a lay representative and legal representative. The current Rules do not do so, and the only practical difference in this set of Rules is that legal representatives cannot be ordered by the Tribunal to cease representing someone, even where they are unsuitable or the interests of justice so require.

Given that the Scottish Government’s policy is to promote the use of lay advocacy (as opposed to legal advocacy) at the Tribunals, it seems odd that the Rules should promote the use of legal representatives in this way.

Rule 5

The proposed role of a supporter in quietly advising on points of law and procedure would seem to be unnecessary in a system where lay representation is permitted, and public funding is available (in both the Tribunal’s jurisdictions) to allow those of limited means to be represented free of charge.

Rule 6

These rules on expenses differ from those currently in place. In particular, they do not allow for expenses to be awarded whether the original decision or conduct challenged was wholly unreasonable. The Tribunals have had cause to award expenses on this basis on at least one occasion (cf. https://www.asntscotland.gov.uk/sites/default/files/decisions/ASNTS_D_05_2009_16.07.09.doc) and it does provide the Tribunal the ability to recognise in an award of expenses unreasonable conduct which has led to a reference or claim being required, rather than just unreasonable conduct during the Tribunal procedure itself.

Rule 7

In my view, it is not appropriate for a staff member of the SCTS to carry out the judicial functions of the Tribunal. Such a staff member would not have been through the requisite appointment process that Tribunal members and legal members have, nor would they necessarily be familiar with the context (additional support needs or disability in education) in which the decision was to be taken.

Rule 9

At present no request for permission is required before an appeal of a decision of the Tribunal is possible. I am not clear that there is any evidence that there is a need for this kind of barrier to appeals to be introduced. The number of appeals of decisions of the Additional Support Needs Tribunals every year is very low. There have been no such appeals reported on the scotcourts.gov.uk website this year. There was one in 2016, and none in 2014 or 2015.

The law in this area is still relatively underdeveloped and placing further barriers in the way of appeals being progressed could hinder the law’s development and opportunities to clarify the law.

Rule 12

Rule 12 is within Part 1, which are the general provisions, applying both to additional support needs cases and those brought under the Equality Act 2010. Should there not therefore be an alternative provision allowing the monitoring of First-tier Tribunal decisions which require an independent or grant-aided school to do anything (as a responsible body under the Equality Act 2010)?

There would not necessarily need to be an equivalent to Rule 12(b) in relation to independent or grant-aided schools, but one could be devised where the President might refer such matters to HMIe / Education Scotland.

Part 2

Rule 14

(6) – To comply with a two month deadline in relation to a deemed refusal requires the parent to be aware of the law as it relates to this matter. In my experience, most parents are not aware of the effects of the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005. Particular flexibility needs to be given where parents only become aware of the position at some later stage.

(7) – Where there is an ongoing failure, then the two month deadline should operate as a rolling deadline, i.e. two months from the latest date on which the failure continued. Otherwise there can be situations where the authority fail to prepare or review a CSP, and continue to fail to do so. If no reference can be made after two months of failure, then the preparation or review may never be undertaken and the parent has no remedy by way of reference to the Tribunal.

Rule 17

(3) – First mention of the child’s views is here – but the draft Rules do not make any reference to the support service for children to be set up under Section 31A of the Education (Additional Support for Learning) (Scotland) Act 2004, which has a specific role in obtaining children’s views in the context of Tribunal proceedings.

Rule 19

(2)(g) – Again, there is no reference to the children’s support service re: child’s views.

(5) – The test to amend the authority’s response is “in exceptional circumstances”, whereas the test found in Rule 39(3) for the authority to rely on grounds not found in its response is the lesser “fair and just to do so” test. This seems contradictory and potentially encourages a change of tack to be undertaken at a later stage in proceedings, rather than earlier.

Rule 29

(1) – In practical terms, both sides are frequently in the position where the extension of time (particularly) for lodging of documents etc is required. The Tribunal are good in taking a pragmatic approach to this. The test of “exceptional circumstances” seems too high. It is wholly unexceptional for new information to become available in relation to a child’s education during the currency of a Tribunal case.

It also conflicts with the test applied for trying to lodge documents at the start of a hearing (Rule 45) which is “fair and just to do so” – again this potentially encourages parties to delay lodging documents to the day of the hearing, which cannot be a smart idea.

Rule 33

(5)(b) – This provides for expenses of attendance for witnesses called by the parties. Should there be an equivalent rule to provide for the payment of expenses for witnesses called by the Tribunal under Rules 34 or 35?

(6) The equivalent Rule 85 for claims, specifies that the witness count does not include the claimant themselves. Is the implication that the two witnesses here do include the appellant and/or the authority’s primary attendee? If so, this has not been the practice of Tribunals to date.

Rule 35

(2) – The education authority for the area to which the child belongs would not always be the relevant extra authority to call. The circumstances in which the “home” authority would be needed (and not already the main authority in the case) would be most likely a placing request for an out of authority placement. The purpose of calling the “home” authority would be that they would know about the child’s current schooling and needs. However, the child would not necessarily be at a school in their home area. A child who lives in Glasgow and attends school in East Renfrewshire, whose parents make a placing request for a new school in South Lanarkshire would be ill-served by this rule. The benefit to the Tribunal would be in being able to call East Renfrewshire, not Glasgow (as this Rule would suggest).

A rewording to allow the Tribunal to call the education authority which is currently (or about to be) responsible for the child’s school education – either instead of or in addition to the current wording would avoid the above problem.

Rule 37

(4)(b) – The implication here is that decisions in cases where there is no hearing must be taken by the legal member alone. Would it not be preferable for the option to exist for these to be taken by the Tribunal as well? This would allow access to the non-legal members’ expertise in the field of additional support needs to be applied to the decision in relevant cases.

Rule 38

(7)(c) – Does this mean a supporter in terms of Rule 5? Or someone in addition to that? If it is a supporter, that term should be used to avoid confusion.

Should a reference to the children’s support service (s31A, 2004 Act) be explicitly included here?

Rule 39

(3)(b) – Cf. comments on Rule 19(5) earlier.

Rule 43 & 44

Rule 44 should include the power similar to one found in Rule 43 to appoint a suitable person to facilitate the seeking of views of the child. A reference to the children’s support service (s31A, 2004 Act) would be pertinent here. The person so appointed should then be added to the list of those permitted to attend a hearing in Rule 38(7).

Part 3

Rule 61

(3) – This rule places the onus on notifying the Equality and Human Rights Commission with the claimant. Given that many claimants may be unrepresented, this is an easy thing to miss. It would be better to require the Tribunal to pass a copy of the claim to the Commission.

(4) – There is missing from the six months time limit provisions equivalent to Sections 118(6) and 123(3) of the Equality Act 2010 that “conduct extending over a period” is to be treated as done at the end of that period. The absence of this potentially leaves those bring claims to the Tribunal at a disadvantage compared with those bringing similar claims to the Civil Courts or Employment Tribunals.

(5) – Section 27 of the Equality Act 2006 has been omitted by virtue of Section 64(1)(b) of the Enterprise and Regulatory Reform Act 2013.

Rule 66

(5) – The test to amend the responsible body’s response is “in exceptional circumstances”, whereas the test found in Rule 85(4) for the responsible body to rely on grounds not found in its response is the lesser “fair and just to do so” test. This seems contradictory and potentially encourages a change of tack to be undertaken at a later stage in proceedings, rather than earlier.

Rule 75

(1) – In practical terms, both sides are frequently in the position where the extension of time (particularly) for lodging of documents etc is required. The Tribunal are good in taking a pragmatic approach to this. The test of “exceptional circumstances” seems too high. It is wholly unexceptional for new information to become available in relation to a child’s education during the currency of a Tribunal case.

It also conflicts with the test applied for trying to lodge documents at the start of a hearing (Rule 90) which is “fair and just to do so” – again this potentially encourages parties to delay lodging documents to the day of the hearing, which cannot be a smart idea.

Rule 83

(4)(b) – The implication here is that decisions in cases where there is no hearing must be taken by the legal member alone. Would it not be preferable for the option to exist for these to be taken by the Tribunal as well? This would allow access to the non-legal members’ expertise in the field of disability to be applied to the decision in relevant cases.

Rule 84

(7)(c) – Does this mean a supporter in terms of Rule 5? Or someone in addition to that? If it is a supporter, that term should be used to avoid confusion.

Rule 85

(4)(b) – Cf. comments on Rule 66(5) earlier.

Rule 89

Rule 89 does not include an equivalent duty on the Tribunal to that found in Rule 44, i.e. to seek the views of the child (presumably only necessary where the child is not a party to proceedings). Where this duty is introduced, it should include the power similar to one found here to appoint a suitable person to facilitate the seeking of such views. A person so appointed should then be added to the list of those permitted to attend a hearing in Rule 84(7).

A recent decision of the Scottish Public Services Ombudsman (SPSO) provides a useful reminder of the importance of schools having and implementing their own anti-bullying policies.

The complaint, against the Highland Council, was that they had failed to ensure that the school attended by the complainant’s daughter had an anti-bullying policy in place. The SPSO upheld the complaint. Although the Council’s own policy was thorough, the Ombudsman found that the school did not have its own policy in place that sufficiently met the requirements of the council’s policy.

The SPSO recommended that the council:

apologise to Miss C and Miss A for the failings identified in this case; and

reflect on the failings identified and advise us of the actions they will take to address these.

The National Approach adopts a definition of bullying which is focussed on its impact on those experiencing it:

“Bullying can be understood as behaviour which leaves people feeling helpless, frightened, anxious, depressed or humiliated.” (p4)

It sets anti-bullying firmly in the context of GIRFEC and the Curriculum for Excellence, and adopts as one of its key principles:

“We will seek to prevent and tackle bullying, through the development and implementation of effective anti-bullying policies and practices … We will address the needs of children and young people who are bullied as well as those who bully within a framework of respect, responsibility, resolution and support” (p8)

A school’s anti-bullying policy and practice are therefore seen as the main ways in which preventing and tackling bullying is done.

The National Approach is clear that all organisations that work with children and young people should develop and implement an anti-bullying policy.

It goes on to specify that anti-bullying policies should include the following (p9):

a statement which lays out the organisational stance on bullying behaviour;
a definition of bullying, developed through consultation creating a shared understanding between all parties involved;

expectations or codes of behaviour and responsibilities for staff and children and young people;

preventative and reactive strategies showing what an organisation commits itself to, what strategies it will employ when faced with bullying incidents or allegations and to prevent bullying from happening;

clarity on how and how often the organisation will communicate its anti-bullying policy and to whom; and how parents and carers will be informed of incidents;

the recording and monitoring strategies that will be used for management purposes; and

how and how often the policy will be evaluated to understand how successful and effective the policy is.

By following the National Approach, schools will be best placed to create a strong anti-bullying ethos and to respond effectively to incidents of bullying as they arise.

Response to Consultation
“Empowering Teachers, Parents and Communities to Achieve Excellence and Equity in Education” – A Governance Review

Introduction

1. My purpose in responding is to highlight certain legal issues which arise. It is hoped that these comments may be of assistance to those considering these matters.

2. Education law in Scotland already affords education authorities and Scottish Ministers a degree of flexibility in terms of governance arrangements. For example, section 24 of the Education (Scotland) Act 1980 allows for education authorities to make payments to independent schools or to other bodies providing education or education services, allowing authorities to procure educational services from third party providers in the voluntary sector. The section contains a mechanism for allowing authority representation on the boards or other governing bodies of such schools. Similarly, section 73 allows the Scottish Ministers to make payment of grants to schools (and other educational establishments) for the provision of education or education services. Section 74 allows such payments to be made subject to conditions. This is how Jordanhill School is funded, for example. Seven grant-aided special schools are also funded in this way, although this system is currently under review, following the Doran Review.

3. Scottish Government have a commitment to “empower schools and decentralise management and support through school clusters and the creation of new educational regions.” The creation of new educational regions will assist in delivering decentralisation if the bodies are taking on existing Scottish Ministers functions. If the proposal, however, is that educational regions take on local government functions, then that would be a process of centralisation, not decentralisation.

4. The consultation document contains “a presumption that decisions about individual children’s learning and school life should be taken at a school level”. However, section 28 of the 1980 Act sets out the general principle that children are to be educated “in accordance with the wishes of their parents” (subject to important caveats as to suitable instruction and public expenditure). The presumption in law is that decisions about individual children’s learning should be taken by their parents – and not by the school. In any event, a legal presumption of this sort – if that is what is being suggested – would require a significant structural alteration. At present, local authority schools do not have a separate legal identity – they exist only as part of the authority. This would probably need to change if this presumption were to be given legal force. There would also need to be clarity as to what is meant by “at school level” – does this mean by the Head Teacher acting alone? Or by a board or governors? Or something else?

5. The consultation document’s list of organisations involved in the governance of education does not take into account the UK context. There are pieces of UK legislation which significantly affect Scottish education, and which need to be considered. The best example would be the Equality Act 2010 – which is of particular relevance to disabled pupils and those with other protected characteristics. At present the education authority is the “responsible body” in terms of equality law for all public schools. Any proposed change to this positon would require an amendment to this Westminster legislation. That same list does not mention independent special schools or grant-aided special schools, which educate a number of children and young persons with additional support needs for whose school education the authority remain responsible. The impact of any changes to governance arrangements on pupils educated in these contexts will need to be carefully considered.

6. The emphasis on accountability in the OECD summary re: effective governance and successful reform is welcome. The current picture of legal accountability for education duties is disparate and inconsistent, with accessible remedies available in some aspects and none at all in others. The pending establishment of an education chamber within the Scottish Tribunals is an opportunity to have a single route of accountability available for children, parents and young people in relation to their education.

Empowering teachers, practitioners, parents, schools and communities

7. At p9, the document states “We want to see more decisions about school life being driven by schools themselves.” As I mention above, this should not be allowed to override the existing legislative general principle that children are to be educated in accordance with the wishes of the parents.

8. As the document goes on to say, devolved school management already exists and can be used to ensure that some management and funding decisions are already taken at that level.

9. The document goes on to propose that legal responsibilities for delivering education and raising standards should be extended to schools (and teachers / head teachers?). To do so would require each school to have its own separate legal identity. The most likely form would be that the school would be constituted and have a managing or governing board of some sort. Parent Councils as currently legislated for, would not be able to fulfil this role (still less, Parent Forums) although legislative changes could be made to allow this. There would also be required legislation governing the relationship between these more autonomous schools and the education authority, the proposed educational regions and the Scottish Ministers. This is no small task and would involve a fundamental rewrite of much of Scots education law. The form of the governing bodies would require careful thought as well. Currently education authorities are subject to democratic oversight and control through local government elections. Even if new boards of governors are to be made by election, the reality is that many schools struggle to get sufficient volunteers for a full Parent Council, let alone to make elections worthwhile. It may be more difficult to attract volunteers in the event that legal accountability is a feature of such bodies.

10. There can also be real benefits to having decisions taken on a strategic basis at education authority level, and unintended consequences which may arise from devolving powers to schools. It has been measures taken by education authorities which have been responsible for the reduction in the numbers of exclusions, rather than (on the whole) schools acting individually. Duties like the duty to provide alternative education where a pupil has been permanently excluded from a school would require to remain at authority level as well. To give another example, the duty to plan for improvements to school accessibility by way of an Accessibility Strategy is one which lies with the education authority. There is one plan for all the authority’s schools. The guidance allows for authorities to specialise, to have one school which is particularly accessible for pupils with a particular disability, which allows for a more efficient use of resources. If each school was to be responsible for these duties directly, then this concentration of supports and resources would not be possible.

11. The empowerment of children and young people within schools is not only beneficial, it is also an obligation in terms of the UN Convention on the Rights of the Child. Some local government education committees already include pupil representation, and a statutory requirement to pupil membership/representation (alongside parental membership) of schools’ governing bodies (whatever form they take) would be a real step forward in this area.

12. Devolving decision making to “teachers, schools and communities” sounds like a proposal for new boards of governors with staff and parent or community membership or input. If that is the case, then the devolution is actually to the board or other similar body – and the devolution to parents etc. only then works so long as the board is representative of the wider parent body / staff group / community. Support would be needed to encourage and facilitate involvement, and to ensure that boards or similar bodies are both representative and diverse.

Strengthening ‘the middle’ – how teachers, practitioners, schools and other local and regional partners work together to deliver education

13. Collaboration within education is undoubtedly a good idea, but the idea of mutual or collective responsibility for improvement and results is more problematic. Certainly, it should not be attempted to put this on a legal footing. A legal accountability across clusters and networks would be impractical, to say the least. Whether it is put on a legal footing or not, the danger is that in sharing accountability, there is no one body who is themselves accountable. From a desire to make everyone accountable, you can end up with nobody being accountable. Many parents of children with additional support needs are already familiar with being directed from education authority to school and back again in search of support, answers etc.

14. For children with additional support needs in particular, the key collaborations are often not just with other schools, but with colleagues in social work, associated health professionals and CAMHS teams. Co-locating relevant professionals, akin to the New Community Schools pilot from the early 2000’s, would allow for the co-ordination and availability of specialist support for children who most need it.

15. It is not clear from the document what the purpose or role of educational regions would be. There are numerous examples of education authorities working together to share best practice etc. Even if it were thought to require a renewed emphasis, the setting up of educational regions as an additional layer in the system is not obviously the best answer. As stated above, if the educational regions are to take on Scottish Government functions, then this could be seen as decentralisation of a sort. If they are to take over education authority functions, then the reverse would be true. There is also the possibility of future funding disputes, which particularly affect children with additional support needs – is the cost of additional support going to come from a school budget? Or an authority budget? Or the regional budget?

A clear national framework and building professional capacity in education

16. On p 13 it states “National government is responsible for setting clear priorities for Scottish education”. This has been the case since National Priorities for Education were introduced in 2001. Latterly Scottish Government stopped monitoring the priorities and the measures attached to them. The National Priorities have been replaced and updated as part of the National Improvement Framework. It is disappointing to see additional support needs falling off this list of priorities at this stage.

Fair funding – learner-centred funding

17. The nature of the funding formula is of great importance if the aim of equity is to be achieved. In the event that funding and responsibility is devolved to a school level, then careful management will be required in order that we do not end up with a situation where there is a financial incentive to reject or exclude pupils with additional support needs whose education is the most expensive to provide.

18. One obvious way of countering this would be to ensure that funding was indeed truly learner-centred by a) reflecting the cost of making provision for the child’s individual needs and b) following the child. Done on an individual basis, this would require a much more detailed and widespread system of statutory education planning than is in place at the moment. This does introduce more complexity into the system, however. A system of pupil premiums as operated in England & Wales, might be a more broad brush method of achieving similar goals.

Accountability

19. As mentioned above, the current picture of legal accountability for education duties is disparate and inconsistent, with accessible remedies available in some aspects and none at all in others. The pending establishment of an education chamber within the Scottish Tribunals is an opportunity to have a single route of accountability available for children, parents and young people in relation to their education.

Boys, children living in single parent families, and pupils from the poorest communities were most likely to be excluded from school. Equally badly behaved pupils from more affluent areas and those from two parent families were accorded greater tolerance and, as a consequence, were far less likely to be expelled.

The study findings show that one of the keys to tackling Scotland’s high imprisonment rates is to tackle school exclusion. If we could find more imaginative ways of retaining the most challenging children in mainstream education, and ensuring that school is a positive experience for all Scotland’s young people, this would be a major step forward.
– Professor Susan McVie, Co-director of the study

And all of this records only formal exclusions, for which there is a paper trail. By definition, the use of “informal exclusions”, cooling off periods, invitations to remove a child, part-time timetables and other means of denying a child their right to education – are not recorded and therefore not widely understood. Anecdotally, this affects children with additional support needs and/or disabilities disproportionately.

Parents (and children with capacity – usually aged 12 or over) have a right of appeal against a school exclusion, whether it is a temporary exclusion or a removal from the school roll.

As things stand, an appeal will be heard, in the first instance, by the education appeal committee. After that, the parent, young person or child has a further right of appeal to the Sheriff Court. The appeal committee has the power to confirm or overturn the exclusion, and to vary any conditions for readmission. The Sheriff, on appeal, has the same powers.

In terms of the Tribunals (Scotland) Act 2014, this jurisdiction will be transferred to the First-Tier Tribunal for Scotland in due course – which is a very welcome change. A right of further appeal will lie to the Upper Tribunal for Scotland. This should make the process of appeal more transparent, independent and accessible.

The right of appeal only applies in relation to public schools, i.e. those managed by the local authority – although some independent schools may have equivalent procedure in place (e.g. an appeal to the board of governors).

Where the excluded child has a disability, an exclusion from school may amount to unlawful disability discrimination in terms of the Equality Act 2010. This is a complex piece of legislation and it can be difficult to tell without specific legal advice whether an act of discrimination has taken place.

A disability claim can be made in respect of any school exclusion, whether the school is an independent, grant-aided or education authority school. Such claims must be made within six months of the exclusion, and are heard by the Additional Support Needs Tribunals for Scotland. The Tribunals have much broader powers that the appeal committee, which might include ordering an apology, staff training, a change in the school’s (or Council’s) policy on exclusions etc. The Tribunal cannot, however, make an order for compensation.

Where a child with additional support needs has been excluded from school, do remember that there are routes by which that decision can be challenged. Particularly where the use of exclusion has become commonplace or is adversely affecting the child’s education or wellbeing, an appeal or a disability claim may be well worth considering.

As you may have read elsewhere, the Humanist Society of Scotland are bringing a judicial review against the Scottish Government’s decision not to review the law in relation to religious observance in schools. At present, the law affords an opt-out for parents, but not for children.

Following on from recommendations from the UN Committee on the Rights of the Child at the last UK “inspection”, the Humanist Society called upon the Scottish Government to review the law to allow older children to take their own decision. The Scottish Government have refused, stating:

“There is no equivalent statutory right to withdraw afforded to children and young people. However many schools will find it helpful and sensible to include young people in any discussions about opting out, ensuring their wishes are aired.”

My own views on this are already on record elsewhere, and have been for some time:

“The right to withdraw from religious instruction or observance is given to the parent of a pupil, rather than to the pupil themselves. In light of more recent legislation, including the Human Rights Act 1998 (cf. art.9: freedom of thought, conscience and religion) and the Equality Act 2010, schools should also have regard to the views of the child in relation to such matters.”

And what does the law actually say? It can be found in three main places, which is not always appreciated. As always the legislation is written as if all children have only one parent (or two who always agree on everything) – there is no rule for what happens if parents disagree about religious observance!

First, Section 9 of the Education (Scotland) Act 1980 sets out the basic rule, under the section heading “Conscience clause”, which is to the effect that the parent of a pupil at a public school has the right to withdraw them from “any instruction in religious subjects” and “any religious observance” in any public school or grant-aided school. Interestingly, the term “pupil” is used here, rather than child – so the right remains with parents in relation to pupils even after they have turned 16. Remember also that this is a right to withdraw, not a right to ensure participation. Arguably – and this may indeed be what the Scottish Government end up arguing – a child or young person who wishes to withdraw from religious observance could insist on other rights (the Human Rights Act 1998 or Scotland Act 1998 in terms of their Article 9 rights) to achieve that result. There is nothing in this preventing the school from granting such a request.

The children’s rights issue arising from Section 9 would be where a pupil wishes to participate in religious observance – and is prevented from doing so by reason of a parent’s withdrawal request. An interesting cause for the Humanist Society to be taking up!

Section 10 of the Education (Scotland) Act 1980 (“Safeguards for religious beliefs”) applies to pupils who board at a residential school (or at a hostel for educational purposes). This affords parents the right to insist on the child being permitted to attend worship, receive religious instruction and participate in religious observance in accordance with the tenets of their parents’ religion. There is no equivalent to this for the child, but again the duty on the school is to permit the child to do these things (outside school hours and not incurring unreasonable costs) – there is no requirement to compel the pupil to take part. Nor is there anything preventing the school from allowing the pupil to participate in worship in relation to their own religious beliefs (if they differ from those of their parents).

Finally, Regulation 12(3) of the Schools (General) Regulations 1975 applies to pupils at a special school (includes a special unit within a mainstream school). This ensures that no education authority may compel a pupil to attend religious observance or receive religious instruction against the wishes of their parents. Further, it requires the authority to give the parent an opportunity to express their wishes – a requirement not present in the other sections. Again, the children’s rights issue which may arise is that of a child who wishes to attend religious observance – although this could be permitted, so long as it is not compelled!

The law is no doubt in need of revision – even the terminology barely fits modern educational practice – particularly in non-denominational schools. However, the Scottish Government’s position is that the law does comply with pupils’ Convention Rights (when read with the guidance and Curriculum for Excellence). Given the nature of the duties set out above, this may just be correct – although there may be a question mark over how well schools understand this. If there is an area where the law may breach a pupil’s Convention rights it is for the child who wishes to attend religious observance, but is prevented from doing so because of their parent’s decision to withdraw them.

As the article points out, this is the latest group to seek direct Scottish Government funding for their school, following in the well documented footsteps of St. Joseph’s Primary School in Milngavie.

The Scottish Government already have all of the powers they need to grant the Steiner School’s request. Section 73 of the Education (Scotland) Act 1980 allows the Scottish Ministers, by regulation, to pay grants to the managers of any educational establishment, and to “any other persons” for providing education or educational services. Section 74(1) allow conditions to be imposed on such grant payments. This is how Jordanhill School is funded.

No primary legislation would be required. It would be a politically huge step to take, no doubt. Especially in the case of the Steiner School which, as I understand it, runs a different curriculum (i.e. not Curriculum for Excellence).

From a legal perspective, there are two points to consider here.

The first is that both St. Joseph’s and the Glasgow Steiner School are making, essentially the same argument that St. Mary’s Episcopal Primary School made in the case of Dove v. Scottish Ministers back in 2001/02.

The argument is essentially this – the Scottish Ministers directly fund Jordanhill School as a mainstream “grant-aided” school; so why not us? Jordanhill is an anomoly within the system, and maybe some day it will be altered – but until then it can be explained away as a historical curiosity, unique circumstances etc.

Funding other schools directly definitely would open the floodgates, the “why not us?” case becoming more and more difficult to answer each time an exception is made. Maybe the Scottish Government are keen to have more autonomous grant-aided schools but, if so, it should surely be on the basis of a national policy and one which is accessible to all schools who might choose to opt in, not just those which the best PR skills.

From that point of view, and even if this were being done on a “pilot” basis, the proposals have very different implications. Fund the Steiner school, and the Scottish Government is allowing parents at an independent school to depart from Curriculum for Excellence, and funding them to do so. Fund St. Joseph’s in Milngavie, and what does that do to East Dunbartonshire Council’s primary school estate planning?

Secondly, in the background, the Scottish Government is still working through the implementation of the Doran Review recommendations – part of which may have a major implication for the seven special schools in Scotland which currently receive direct grant funding from Scottish Government.

Introducing new mechanisms for direct grant funding from Scottish Government in the middle of that process would be complicated to say the least. It would be problematic to try and insist that any new system could only apply to mainstream schools. And, if the Scottish Government were open to encouraging parent controlled schools which may take different approaches to education, then projects like the Stoa School in Edinburgh may well be very interested indeed.

While superficially attractive, moves to direct funding of schools by Scottish Government would create more problems than it solves. Without major structural (and legislative) changes to the way in which education is managed and delivered in Scotland, it is basically a non-starter.

Big news in education law as Jon Platt, a father from the Isle of White, was cleared of a criminal offence in terms of Section 444(1) of the Education Act 1996. Having been acquitted by a Magistrate following a seven day absence for a family holiday to Florida, the High Court agreed that the court was entitled to look at the overall record of attendance in determining whether a child had failed to attend school regularly.

Is this decision of relevance to education authorities in Scotland? In a word, yes. The legislation is worded in similar terms. An offence arises in England or Wales where a pupil “fails to attend regularly at the school” – though a defence of “reasonable justification” may arise in some circumstances. In terms of Section 35(1) of the Education (Scotland) Act 1980, the offence occurs where a child of school age “fails without reasonable excuse to attend regularly at the said school”.

Following consultation with headteachers, it has been clarified that family holidays should not be recorded as authorised absence, except in exceptional domestic circumstances, where a family needs time together to recover from distress, or where a parent’s employment is of a nature where school-holiday leave cannot be accommodated ( e.g. armed services or emergency services). It is for local authorities and schools to judge when these circumstances apply and authorise absence, accordingly.

The categorisation of most term-time holidays as unauthorised absence has been a contentious issue for some families, many of whom are concerned at the higher cost of holidays during school holiday periods. The Scottish Government has no control over the pricing decisions of holiday companies or flight operators. Our main focus is to encourage parents and pupils to recognise the value of learning and the pitfalls of disrupting learning for the pupil, the rest of the class and the teacher. It is for schools and education authorities to judge what sanctions, if any, they may wish to apply to unauthorised absence due to holidays.

Note that this change to the guidance, which effectively seeks to alter who can be prosecuted for a criminal offence was done without any alteration to the law. Similar changes were attempted in a similar way south of the border, and now it seems that these efforts have been undone by the courts in dramatic fashion.

Despite differences in the systems, in my view, it is very likely that courts in Scotland would adopt a similar approach to the interpretation of the phrase “attend regularly” – although it should be noted (anecdotally) that the Scottish Courts already take a more lenient approach to sentencing in such cases than the English Courts which have jailed at least one parent for her child’s non-attendance.

It is all but certain that solicitors representing parents being prosecuted in Scotland will be making this argument in appropriate cases from now on. At the time of writing, the Scottish Government have not responded formally to the judgement, but the Department of Education in Whitehall are already talking about changes to the law. At the very least, north of the border, education authorities may wish to consider carefully which cases are brought before the courts in future.

The author, Iain Nisbet, is a member of the Attendance Council for his local area.

However, this is not the legal position. In fact, the new law does not alter the status or effect of the CSP at all. Article 3(2)(b)(ii) of the Child’s Plan (Scotland) Order 2016 require a Child’s Plan to record all the information set out in a CSP which is “a record of any wellbeing needs which the child has and any action taken or to be taken to address those needs” – or, in other words, most of it. Article 7(9)(b) effectively ties the review cycle of a Child’s Plan to that of the CSP.